Criminal sentencing in the United States


In the United States, sentencing law varies by jurisdiction. Since the US Constitution is the supreme law of the land, all sentences in the US must conform to the requirements of the Constitution, which sets basic mandates while leaving the bulk of policy-making up to the states.

Total incarceration in the United States by year

Despite the continued growth of federal criminal law, the vast majority of criminal sentencing takes place in state and local courts. Except for death penalty cases (which are exceptionally rare), juries generally have little involvement in sentencing, which is typically left to the discretion of the presiding judge. Sentences are typically pronounced by the judge in a separate hearing, after the jury (or other finder of fact) has issued findings of fact and a guilty verdict, and in some cases after the probation department has carried out a pre-sentence investigation. The structure and jurisdiction of courts within a U.S. state are typically governed by state law, as are sentences and sentencing guidelines and regimes. There is enormous substantive and procedural difference between the criminal laws of the fifty states and the various federal territories and enclaves.

Each state is very different from every other state in terms of sentencing, and even what acts are crimes:

  • Actions which might constitute a crime in one state would not necessarily constitute a crime in another state, or they might constitute a crime of a different severity. A 15-year-old and a 17-year-old having consensual sexual intercourse might constitute a crime in one state but not another. The possession of cannabis, certain types of firearms, or exotic animals might be serious crimes in some states but be perfectly legal in other states. A burglary might be completed only upon entry into a locked house in one state, but upon entry into an attached carport in another.
  • States have different schemes for dividing up crimes by severity and these categories might have similar names across states, but different practical effects. For example, a "2nd degree felony" in Florida is a category of crime punishable by up to 15 years in prison with no minimum while a "2nd degree felony" in Texas is a category of crime punishable by up to 20 years in prison, with a mandatory minimum of 2 years incarceration.
  • Many states have adopted sentencing guidelines which incorporate various factors into a single formula that may or may not constrain the judge's sentencing discretion. The general purpose of these schemes is to produce uniform and fair sentencing within a jurisdiction. However, since views about the correct approach to criminal justice vary from state to state, these statutory schemes vary enormously.
  • Many states have mandatory sentencing statutes which remove the judge's discretion under certain circumstances. Mandatory sentencing schemes typically require minimum periods of incarceration for certain serious crimes and for individuals who have serious criminal records. The state typically has discretion to pursue or waive mandatory sentencing. The content of these mandatory sentencing statutes and the procedures required to bring them into play are different in each state.
  • Some states have parole or early release from incarceration, while others do not. Many states have forms of punishment that are less severe than incarceration (such as probation, time in a halfway house, community service, or house arrest with electronic monitoring), but the exact form of these punishments, as well as which people can be sentenced under such alternatives, varies from state to state.

Some prisoners are given life sentences. In some states, a life sentence means life, without the possibility of parole. In other states, people with life sentences are eligible for parole. In some cases, the death penalty may be applicable; however, since the U.S. Supreme Court decision in Ring v. Arizona, a recommendation of the trial jury is required to impose a sentence of death.

  • However, as one can be sentenced to life without parole, another way to be sentenced for life in prison is a minimum number of years spent in jail depending on the life expectancy of the prisoner. Thus the prisoner will then spend the rest of his or her life in prison.[1]

The U.S. Sentencing Guidelines prescribe a reduction of sentence time for most defendants who accept responsibility and plead guilty; further discounts are available to some defendants through fact bargaining, substantial assistance, and so on. Federal court statistics from 2003 show that the average sentence given for offenses resolved by guilty plea was 54.7 months, while the average sentence for offenses resolved by trial was 153.7 months.[2] The practice of giving much harsher sentences when a defendant chooses to exercise the right to a trial by a jury of his or her peers has been controversial, as is seen as a personal act of anger by the judge over "wasting court time."

Indeterminate sentencingEdit

In some states, a judge will sentence criminals to an indeterminate amount of time in prison for certain crimes. This period is often between 1 and 3 years (on the short end) and 5–50 years on the upper end. The legislature generally sets a short, mandatory minimum sentence that an offender must spend in prison (e.g. one-third of the minimum sentence, or one-third of the high end of a sentence). The parole board then sets the actual date of prison release, as well as the rules that the parolee must follow when released.

During a long sentence, an offender can take full advantage of the programs that the prison has, including rehab for substance use disorders, anger management, mental health, and so on, so when the offender completes the rehab or program he may be released upon request from authorities with a lower risk of recidivism. This process tries to combat the tendency of prisoners leaving incarceration after a long sentence to go back to offending in short order, without any attempt at correcting their ways.

Determinate sentencingEdit

Those given short sentences usually serve the full-time (do "day-for-day") as imposed by the judge, or might receive time off for good behavior, based on state or local rules and regulations.

In the mid-1970s, most state and federal prisons moved from long term to short term sentencing. Over time, though, state and federal authorities have gradually migrated their philosophies back toward long-term sentences. Many states use a mixture of the two; e.g., some offenders may receive sentences reduced by several months due to rehabilitation, counseling, and other programs, as well as good time.

Trends in sentencing lawEdit

Since the 1840s, many jurisdictions, including the federal courts, have adopted a practice of having a probation officer prepare a presentence investigation report to inform the court as to the defendant's characteristics, including his criminal record if any. In the 1970s, the length of incarceration had increased in response to the rising crime rates in the United States. By the 1980s, state legislatures began to reduce judicial discretion in sentencing terms and conditions. This was especially true in cases of life imprisonment, which between 1992 and 2003 increased by 83% due to the implementation of three strikes laws. Short-term sentencing, mandatory minimums, and guideline-based sentencing began to remove the human element from sentencing. They also required the judge to consider the severity of a crime in determining the length of an offender's sentence.

Sentencing of killersEdit

The United States does not have a specific guideline for sentencing murderers, including serial killers. When a killer is apprehended, he will be charged with murder, and if convicted can get life in prison or receive the death penalty, depending on in which state the murders took place. Generally speaking, each victim of a murder will merit a separate charge of murder against the offender, and as such, the killer could get a life sentence, a death sentence, or some other determinate or indeterminate sentence based upon the number of murders, the evidence presented, and any aggravating or mitigating circumstances present. Such a compounded sentence may be tailored to run consecutively, with one sentence beginning after completion of another, or concurrently, where all or most of several sentences are served together.

Below are several examples of how a murderer may be sentenced, by state:


In Arizona, a person is guilty of murder if an offender knowingly and intentionally causes the death of a person. The murder must be premeditated. If an individual is found guilty of murder, there are three possible sentences: 35 years to life, life without parole, or the death penalty.[3]


In Florida, a person is guilty of first degree murder when it is perpetrated from a premeditated design to result in the death of a human being. Murder is categorized as a capital offense; if convicted, the offender will receive either the death penalty or life in prison without parole. A unanimous vote of a twelve-person jury, is required to sentence a person to death if they are convicted of capital murder.[4][5]


In Hawaii, a person is found guilty of second degree murder when they intentionally and knowingly cause the death of another person. If the person intentionally or knowingly kills more than one person, or kills a law enforcement officer, a judge, or a prosecutor in the line of, or as a result of, their duties, a witness to a crime, or a defendant to a corroborated crime, or if he hires another party to kill a certain individual, the person has met the criteria to be charged with first degree murder. The State of Hawaii has no death penalty. If they are found guilty, the maximum penalty is life imprisonment without parole.[6]


Louisiana states that homicide in the first degree is killing of a human being with intent. There are other specific circumstances that may contribute, such as killing a police officer or a firefighter. Either of these offenses, or the killing of more than one person, is an automatic first degree charge. Louisiana provides for life imprisonment without parole or the death penalty for murder.[7]


In Massachusetts, first degree murder is defined as killing a person with premeditated intent to kill. The only possible sentence for first degree murder is life in prison without parole as Massachusetts does not have the death penalty. Second-degree murder carries a mandatory life sentence in prison, but with the possibility of parole after 15 years, which is the standard minimum non-parole period in the state for second-degree murder and most other offenses.


In Michigan, a person is found guilty of first degree murder when murder is perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing. In Michigan, first degree murder carries an automatic life sentence without parole.[8]


In Nevada, first degree murder is the unlawful killing of a human being with malice aforethought, either expressed or implied. If a killer is found guilty with aggravating circumstances, such as killing someone via torture or killing a stranger with no apparent motive, they may receive either the death penalty or life without parole.[9]


In the state of Washington, a person is found guilty of first degree murder when there is a premeditated intent to cause the death of another person. Murder in the first degree is a class A felony.[10] If a person is convicted of first degree murder, they will receive a life sentence.[11] If an aggravating circumstance exists in addition to first degree murder, the defendant can be charged with aggravated first-degree murder, which carries only one possible sentence life without parole. Aggravating factors include the killing of a law enforcement officer, murder for hire, or murder committed during the course of kidnapping, rape, robbery, burglary, or arson, or for multiple murders.[12]

Criminal sentencing of womenEdit

Throughout the history of the Criminal Justice System in the United States, women have been held responsible for only 20 percent of total crime.[13] Despite only committing a small portion of crime, women in the United States remain overrepresented in the Criminal Justice System. The United States generates 30 percent of all incarcerated women in the world, despite only comprising five percent of the female population.[13] As such, multiple studies have been conducted to analyze the differences in the crimes committed by men and women, as well as the sentencing of such offenders. Typically, women have been found to hold an advantage over men in sentencing; however, the degree of preferential treatment varies by the type of offense committed.[13][14][15][16] In regard to property and drug offenses specifically, women are less likely than male offenders to receive a prison sentence. When female offenders do receive a prison sentence, research has found women receive shorter sentences than male offenders for the same offense.[14][17] The level of preferential treatment shown to female offenders was lower when the offense was in violation of gender norms. Women who committed more "masculine crimes," such as violent offenses or crimes against children, were not treated preferentially during sentencing.[14] During his concurring opinion in Furman v. Georgia, Justice Thurgood Marshall stated, "There is also overwhelming evidence that the death penalty is employed against men and not women."[17]:76 Within the scope of capital punishment, women are far less likely to receive a death sentence and even less likely to actually face execution. Between 1973 to 2012, women comprised only 2.1% of death sentences imposed at trial and merely 0.9% of persons executed.[18] Women who are sentenced to death at trial are more likely to receive executive clemency than their male counterparts, despite their crime having more aggravating factors that may increase sentencing outcomes.[19]

In an attempt to explain the preferential treatment that is shown to female offenders in criminal sentencing, researchers have developed theories that concentrate on the differences between the treatment of each gender by society. A possible explanation for disproportionate sentencing is the chivalry thesis which states that gendered stereotypes influence sentencing outcomes as women are considered childlike, less threatening, less dangerous, and not responsible for their behaviors.[14][15] This theory also maintains that men are traditionally inclined to minimize the suffering of women as a result of their paternalistic desire and this behavior has been incorporated into the justice system as it is a male-dominated field.[14][15] Judges primarily explained sentencing differentials as a result of childcare responsibilities that would create a larger social cost if mothers were incarcerated, illustrating direct applications of the chivalry thesis.[15] Others argue the disparity in sentencing is merely the result of human error as a result of the dynamics of judicial decision-making.[14] The focal concerns theory reaffirms this belief as this theory states that the sentencing disparity is the result of a judge's inability to spend a large amount of time on a single case and the incomplete information given to them minimizes their ability to make an fully informed decision.[14][15] As a result, judges may unknowingly rely on generalizations of personal biases to guide sentencing decisions.[14] In an attempt to prevent preferential treatment to particular genders, races, ethnicities, or socio-economic classes, the Federal Sentencing Guidelines were enacted to create sentencing uniformity and equality.[17] The enactment of these guidelines has since increased sentences given to women at trial; however, the disparity between male and female offenders persists as the internal biases influencing preferential sentencing have not been addressed.[17]

See alsoEdit


  1. ^ Van Zyl Smit, Dir (2002). Taking Life Imprisonment Seriously in National and International Law. The Hague: Brill.
  2. ^ Bureau of Justice Statistics, Compendium of Federal Justice Statistics 70, 75 tbl. 5.3 (2003).
  3. ^ "13-1105 - First degree murder; classification". Archived from the original on April 11, 2001. Retrieved 2010-07-01.
  4. ^ >2009->Ch0782->Section%2004#0782.04 "The 2010 Florida Statutes". The Florida Senate. Retrieved 13 September 2010.
  5. ^ "Statutes & Constitution :View Statutes". Archived from the original on January 17, 2003. Retrieved 2010-07-01.
  6. ^ "House Bill". 1987-01-01. Retrieved 2010-07-01.
  7. ^ "PART II. OFFENSES AGAINST THE PERSON". Louisiana Legislature. Archived from the original on April 12, 2010. Retrieved 2010-07-01. {{cite journal}}: Cite journal requires |journal= (help)
  8. ^ "Michigan Legislature - Section 750.316". Retrieved 2010-07-01.
  9. ^ "NRS: CHAPTER 200 - CRIMES AGAINST THE PERSON". Retrieved 2010-07-01.
  10. ^ "RCW 9A.32.030: Murder in the first degree". Retrieved 2010-07-01.
  11. ^ "RCW 9A.32.040: Murder in the first degree — Sentence". Retrieved 2010-07-01.
  12. ^ "RCW 10.95.020: Definition". Retrieved 2010-07-01.
  13. ^ a b c Bagaric, Mirko; Bargaric, Brienna (2016). "Mitigating the Crime that is the Over-Imprisonment of Women: Why Orange should not be the New Black". Vermont Law Review. 41 (537).
  14. ^ a b c d e f g h Curry, Theodore; Lee, Gang; Fernando Rodriguez, S (June 2006). "Gender Differences in Criminal Sentencing: Do Effects Vary Across Violent, Property, and Drug Offenses?". Social Science Quarterly. 87 (2): 318–339. doi:10.1111/j.1540-6237.2006.00383.x.
  15. ^ a b c d e Barrick, Kelle; Bontrager, Stephanie; Stupi, Elizabeth (Spring 2013). "Gender and Sentencing: A Meta-Analysis of Contemporary Research". The Journal of Gender, Race, and Justice. 16 (2): 349–372.
  16. ^ Nagel, Ilene H.; Johnson, Barry L. (Summer 1994). "The role of gender in a structural sentencing system: Equal treatment, policy choices, and the sentencing of female offenders under the United States sentencing guidelines". Journal of Criminal Law & Criminology. 85 (1). doi:10.2307/1144116. JSTOR 1144116.
  17. ^ a b c d Etienne, Margareth (Fall 2010). "Sentencing Women: Reassessing the Claims of Disparity". The Journal of Gender, Race, and Justice. 14 (1): 73–84.
  18. ^ Streib, Victor L. (2003). Death penalty for female offenders, January 1, 1973, through June 30, 2003. Ohio Northern University. OCLC 55038713.
  19. ^ Heise, Michael (2003). "Mercy by the Numbers: An Empirical Analysis of Clemency and Its Structure". Virginia Law Review. 89 (2): 239–310. doi:10.2307/3202434. JSTOR 3202434.